Story, J. . . . 1. The first objection is founded upon the
allegation that the compact was made without the consent
of Congress, contrary to the tenth section of the first article,
which declares that "no state shall, without the consent
of Congress, enter into any agreement or compact with
another state, or with a foreign power." Let it be observed,
in the first place, that the constitution makes no provision
respecting the mode or form in which the consent of Congress
is to be signified, very properly leaving that matter
to the wisdom of that body, to be decided upon according
to the ordinary rules of law and of right reason. The only
question in cases which involve that point is, has Congress,
by some positive act in relation to such agreement, signified
the consent of that body to its validity? Now, how
stands the present case? The compact was entered into between
Virginia and the people of Kentucky, upon the express
condition that the general government should, prior
to a certain day, assent to the erection of the district of
Kentucky into an independent state, and agree that the
proposed state should immediately, after a certain day, or
at some convenient time future thereto, be admitted into
the federal Union. On the 28th of July, 1790, the convention
of that district assembled, under the provisions of the
law of Virginia, and declared its assent to the terms and
conditions prescribed by the proposed compact; and that
the same was accepted as a solemn compact, and that the
said district should become a separate state on the 1st of
June, 1792. These resolutions, accompanied by a memorial
from the convention, being communicated by the
President of the United States to Congress, a report was
made by a committee to whom the subject was referred,
setting forth the agreement of Virginia, that Kentucky
should be erected into a state upon certain terms and conditions,
and the acceptance by Kentucky upon the terms
and conditions so prescribed; and, on the 4th of February,
1791, Congress passed an act which, after referring to the
compact, and the acceptance of it by Kentucky, declares
the consent of that body to the erecting of the said district
into a separate and independent state, upon a certain day,
and receiving her into the Union.

Now, it is perfectly clear, that although Congress might
have refused their consent to the proposed separation, yet
they had no authority to declare Kentucky a separate and
independent state without the assent of Virginia, or upon
terms variant from those which Virginia had prescribed.
But Congress, after recognizing the conditions upon which
alone Virginia agreed to the separation, expressed, by a
solemn act, the consent of that body to the separation. The
terms and conditions, then, on which alone the separation
could take place, or the act of Congress become a valid
one, were necessarily assented to; not by a mere tacit acquiescence,
but by an express declaration of the legislative
mind, resulting from the manifest construction of the act
itself. To deny this is to deny the validity of the act of
Congress, without which Kentucky could not have become
an independent state; and then it would follow that she is
at this moment a part of the state of Virginia, and all her
laws are acts of usurpation. The counsel who urged this
argument would not, we are persuaded, consent to this
conclusion; and yet it would seem to be inevitable if the
premises insisted upon be true.